Opinion
NO. 2017-CA-001294-MR
03-29-2019
EUGENIA STARR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Susan J. Balliet Linda Horsman Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, V, JUDGE
ACTION NO. 16-CR-00975 OPINION
AFFIRMING
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BEFORE: ACREE, KRAMER AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: Eugenia Starr brings this appeal of the Campbell Circuit Court's denial of her motion to suppress evidence. Ms. Starr argues that the trial court made errors in its order denying her motion and that the motion should have been granted. We conclude that the order was properly denied and affirm.
Employees of a Frisch's Big Boy restaurant called police to report that two males in the parking lot were in a car nodding off and that two females in the restaurant's restroom had been in there for a long time. Officers of the Highland Heights Police Department were dispatched to the location. Sergeant Nicholas Love and Officer Nicholas Blank went inside to check on the women and another officer remained outside to check on the men.
Upon entering the restaurant, an employee directed the officers to the women's restroom. Almost immediately thereafter, a woman, Chelsey Fields, exited the restroom. The officers saw on her arm a fresh needle mark that was oozing blood. Testimony from the officers at the suppression hearing indicated that they knew right away that Ms. Fields was intoxicated due to the needle mark on her arm and her lethargic behavior. The officers questioned Ms. Fields who stated that her friend, Ms. Starr, was still in the restroom.
The officers opened the restroom door and Sgt. Love initiated contact with Ms. Starr. Sgt. Love testified that he could see Ms. Starr's feet under the stall door and that she was standing away from the toilet. Sgt. Love told Ms. Starr to exit the restroom, but stated she did not. Sgt. Love was not certain what Ms. Starr said, but that it was either that she was on the toilet or that she was busy and to give her a minute. Eventually, Ms. Starr exited the stall and left the restroom. The officers then took the two women outside to talk. The removal of the women from the restaurant was due to the restaurant closing soon.
Sgt. Love testified that while he was talking to Ms. Starr he observed an orange syringe cap in her mouth. He then instructed her to spit it out, which she did. At that time Ms. Starr was given her Miranda warnings, but she continued to talk to the officers. When asked if she had any illegal substances on her person, she admitted that she had methamphetamine in her bra and gave over the drugs. Ms. Starr was arrested for possession of a controlled substance and for possession of drug paraphernalia.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
After Ms. Starr was indicted, she filed a motion to suppress the evidence against her. She claimed that the officers did not have a reasonable articulable suspicion that criminal activity was occurring justifying their stop and questioning. A hearing was held where Sgt. Love and Officer Blank testified. The trial court ultimately denied the motion to suppress. Thereafter, Ms. Starr entered a conditional guilty plea reserving her right to appeal the suppression issue. This appeal followed.
Ms. Starr does not present an argument before this Court regarding whether or not she was in police custody at the time of her detainment. She also does not raise the issue of whether a syringe cap can be classified as drug paraphernalia. Accordingly, we make no decision as to these issues.
Our standard of review of a circuit court's decision on a suppression motion following a hearing is twofold. First, the factual findings of the court are conclusive if they are supported by substantial evidence. The second prong involves a de novo review to determine whether the court's decision is correct as a matter of law.Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000) (footnotes omitted).
Ms. Starr argues that the trial court made three specific errors in its order denying her motion; therefore, there was insufficient evidence to support the officers' investigative stop. "Under Terry v. Ohio, [392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] a police officer may briefly detain a person for investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, that the person has engaged or is about to engage in criminal activity." Williams v. Commonwealth, 364 S.W.3d 65, 66-67 (Ky. 2011) (footnote omitted).
Ms. Starr is correct that the trial court did make three errors in its order, but these errors were only technical errors and do not affect the outcome. First, the trial court's order recited that when Sgt. Love told Ms. Starr to exit the restroom stall, she stated that she was on the toilet. This is only a partial error. Sgt. Love testified that Ms. Starr stated either that she was on the toilet or that she was busy and needed a minute. We conclude that this error was harmless.
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the
parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.Kentucky Rule of Criminal Procedure (RCr) 9.24. The fact remains that Ms. Starr was in the restroom stall; Sgt. Love could see that she was not using the toilet; and she resisted instructions to exit the stall. Under the circumstances, the court's error was harmless.
The second error is that the court improperly described Frisch's as within a high-crime area. Again, this was a technical error, but not prejudicial. No one testified at the hearing that Frisch's was in a high-crime area, but the trial court used the term in passing while reciting case law which holds that a person being in a high-crime area is not sufficient reason to justify a Terry stop. The area in which the Frisch's was located was discussed in the court's order; however, the trial court focused on Sgt. Love's testimony that, based on his experience, drug users sometimes cannot wait to get to a private area and will pull off highways into public areas to use restrooms and parking lots to do drugs. The Frisch's in this case was located just off an expressway, and the court believed this fit with Sgt. Love's testimony. Again, this is a harmless error.
Ms. Starr's third allegation of error is that the court erroneously exaggerated Ms. Fields' condition. The court stated that "Sergeant Love and Officer Blank found Ms. Fields exiting the bathroom with fresh needle marks on her arm, blood running from those marks, and pin-point pupils." Ms. Starr claims that Ms. Fields only had one needle mark on her arm, not multiple, and that there was no testimony regarding her pupils. Again, this is a technical error and was harmless. Testimony was that Ms. Fields only had one needle mark on her arm and no one testified as to her pupils. Regardless of the specifics of Ms. Fields' condition, the fact is that the police officers recognized, based on their experience, that she had just used intravenous drugs.
The only mention on Ms. Fields' pin-point pupils comes from Ms. Starr's brief supporting her motion to suppress.
We apply a two-step analysis in evaluating investigative detentions under Terry v. Ohio: first, we must determine whether officer had reasonable, articulable suspicion to justify an investigatory stop; and second, if the stop was proper, was the "degree of intrusion was reasonably related in scope to the situation at hand, which is judged by examining the reasonableness of the officials' conduct given their suspicions and the surrounding circumstances."Frazier v. Commonwealth, 406 S.W.3d 448, 453 (Ky. 2013) (citation omitted).
Here, even when we take into account the harmless or technical errors made by the trial court, there was reasonable, articulable suspicion to justify the investigatory stop. The facts supporting the investigatory stop are as follows: the officers were called to the restaurant by concerned employees; the restaurant was located close to an expressway; two men were nodding off in a car in the parking lot; two women were spending a long time in the bathroom; Ms. Fields had fresh needle marks on her arm and appeared to be under the influence of narcotics; Ms. Starr was in the restroom, but was not using the toilet; and Ms. Starr was reluctant to exit the restroom stall. Based on the totality of the circumstances, the trial court's findings, while containing some minor errors, were not clearly erroneous. Thus, the court did not err as a matter of law.
Ms. Starr also makes the argument that the investigatory stop was unreasonably prolonged, and that Sgt. Love should not have ordered her to spit out the syringe cap. She argues that once she was outside of the restaurant and the officers observed that she was not under the influence, she should have been free to leave. She claims that when Sgt. Love told her to spit out the syringe cap, the investigatory stop had been impermissibly prolonged and that her 4th Amendment right against unlawful search was violated.
Ms. Starr classifies this as a search of her mouth.
As stated above, we believe that the investigation of Ms. Starr was reasonable under the circumstances and not unlawfully prolonged. The officers properly removed her from the restaurant due to its closing and were reasonable in detaining her outside for a short period of time to ascertain what was going on. As for the 4th Amendment search of her mouth, the Commonwealth argues that this claim is unpreserved because Ms. Starr did not raise it at the trial level. We agree. Ms. Starr did not raise the alleged search of her mouth before the trial court. The only arguments raised with the trial court were that the officers' Terry investigation was unjustified, that her detention was unreasonably prolonged, and that a syringe cap should not be classified as paraphernalia. "The Court of Appeals is without authority to review issues not raised in or decided by the trial court." Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989); see also Shelton v. Commonwealth, 928 S.W.2d 817, 818 (Ky. App. 1996). "[E]rrors to be considered for appellate review must be precisely preserved and identified in the lower court." Skaggs v. Assad, By and Through Assad, 712 S.W.2d 947, 950 (Ky. 1986) (citation omitted). No argument was raised in the trial court regarding the 4th Amendment implications of the search of her mouth.
Based on the foregoing, we affirm the judgment on appeal.
Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(v) requires ample citation to legal authority. The Commonwealth Attorney in this case only cited two cases and they both generally dealt with the standard of review for the issues of this case. The Commonwealth Attorney did not address the multiple cases cited by Ms. Starr and did not cite to a single case for support of his argument. We are compelled to note, as a warning to attorneys before this Court, that failure to cite proper case law could be grounds for striking a brief. CR 76.12(8)(a). --------
ACREE, JUDGE, CONCURS.
KRAMER, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Susan J. Balliet
Linda Horsman
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky